State v. Pope, 121719 WISC, 2017AP1720-CR

• Opinion Judge: ANNETTE KINGSLAND ZIEGLER, J.
• Party Name: State of Wisconsin, Plaintiff-Appellant, v. Robert James Pope, Jr., Defendant-Respondent-Petitioner.
• Attorney: For the defendant-respondent-petitioner, there were briefs filed by Andrea Taylor Cornwall, assistant state public defender. There was an oral argument by Andrea Taylor Cornwall. For the plaintiff-appellant, there was a brief filed by Daniel J. 0'Brien, assistant attorney general; with whom on th...
• Judge Panel: JUSTICES: ZIEGLER, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined. BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in which BRADLEY, ANN WALSH and DALLET, JJ., joined. NOT PARTICIPATING: REBECCA GRASSL BRADLEY, J. (dissenting)
• Case Date: December 17, 2019
• Court: Wisconsin Supreme Court

2019 WI 106

State of Wisconsin, Plaintiff-Appellant,

v.

Robert James Pope, Jr., Defendant-Respondent-Petitioner.

No. 2017AP1720-CR

Supreme Court of Wisconsin

December 17, 2019

SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 6, 2019

Circuit Court Milwaukee County L.C. No. 1996CF960574 Jeffrey A. Conen Judge

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 385 Wis.2d 211, 923 N.W.2d 177 (2018 - unpublished)

For the defendant-respondent-petitioner, there were briefs filed by Andrea Taylor Cornwall, assistant state public defender. There was an oral argument by Andrea Taylor Cornwall.

For the plaintiff-appellant, there was a brief filed by Daniel J. 0'Brien, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Daniel J. 0'Brien.

JUSTICES: ZIEGLER, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined. BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in which BRADLEY, ANN WALSH and DALLET, JJ., joined. NOT PARTICIPATING:

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished opinion of the court of appeals, State v. Pope, No. 2017AP1720-CR, unpublished slip op. (Wis. Ct. App. Nov. 13, 2018), reversing the Milwaukee County circuit court's^[1] order. The circuit court vacated Robert James Pope, Jr.'s ("Pope") 1996 judgment of conviction for two counts of first-degree intentional homicide, party to a crime, and granted Pope's postconviction motion for a new trial. The circuit court concluded that a new trial was necessary because there was no transcript of Pope's 1996 jury trial available. The court of appeals reversed and reinstated Pope's conviction. The court of appeals concluded that Pope was not entitled to a new trial because he failed to meet his burden to assert a facially valid claim of error. We affirm the court of appeals.

¶2 Under State v. Perry and State v. DeLeon, when a transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. Perry, 136 Wis.2d 92, 101, 401 N.W.2d 748 (1987); DeLeon, 127 Wis.2d 74, 377 N.W.2d 635 (Ct. App. 1985) . This court must decide whether the Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. Pope argues that the Perry/DeLeon procedure does not apply, and that courts should presume prejudice when the entire transcript is unavailable. The State argues that under the Perry/DeLeon procedure Pope is not entitled to a new trial because he has not asserted a facially valid claim of arguably prejudicial error.

¶3 We decline to presume prejudice when the entire trial transcript is unavailable. We conclude that the Perry/DeLeon procedure applies whether all or a portion of a transcript is unavailable. We also decline to create an exception to the Perry/DeLeon procedure for Pope because the transcript is unavailable due to Pope's own delay. Thus, we affirm the court of appeals.

I. FACTUAL BACKGROUND

¶4 On September 27, 1995, City of Milwaukee Police Officers William Walsh and John Krason responded to reports of a shooting at a house. When they arrived at the house, the officers found Anthony Gustafson and Joshua Viehland suffering from multiple gunshot wounds. Both young men were pronounced dead at the scene of the crime.

¶5 On January 12, 1996, the State filed a criminal complaint against Pope, charging him with two counts of first-degree intentional homicide while armed, party to a crime, contrary to Wis.Stat. §§ 940.01(1), 939.63, and 939.05 (1995-96) .² Since there is no trial transcript available, the following allegations are drawn from the criminal complaint only. The complaint alleged that Pope, Pope's girlfriend J.R., I.G., D.K., and D.R. all plotted to kill Joshua Viehland because Viehland threatened their friend. According to J.R.'s statement to officers, Pope told her that he would protect her from Viehland. According to I.G.'s statement to officers, the five met at a house to discuss Viehland's threats. J.R. told them all that if they did not shoot Viehland and Jessie Letendre, she and Pope would do it. The complaint alleges that the five made a plan to call Letendre and have Letendre and Viehland meet them at the house. I.G.'s statement to police was that D.R. called Letendre from a phone booth. D.R. kept talking to Letendre at the phone booth and J.R. drove Pope, I.G., and D.K. to the house.

¶6 Pope, I.G., and D.K. hid in the house, and J.R. waited in a car down the hill. At the house, Pope asked what the guys they were going to kill looked like. He had never met them. D.K. told Pope that they were waiting for a bald, white man with glasses. The complaint alleges that two people approached the house. As it turned out, these two men were Viehland and Gustafson, not Letendre. Pope rounded a corner and fired his gun at them. Pope's gun jammed and then D.K. started firing shots. D.K. stated that he shot Viehland, and then shot the other man, not knowing who he was. I.G. stated that when he rounded the corner, he saw a young man lying on the floor. He did not recognize him. He then saw another man fall. I.G. saw this man was Viehland, and then shot him in the head. I.G., D.K., and Pope ran to the car and J.R. drove them away.

¶7 J.R. stated that Pope sat in the front seat with her and that he was excited and breathing heavily. He told her that they had shot two men, and he thought they were dead. Pope told J.R. that he had fired one shot into a man's chest and then his gun jammed; that he did not care who died because he did not know them. Pope threw a gun in the river and the group dispersed, congratulating one another.

II. PROCEDURAL POSTURE

¶8 The charges against Pope proceeded to trial. On May 31, 1996, the jury returned its verdict and found Pope guilty of two counts of first-degree intentional homicide as a party to the crime. But the jury did not find that the State proved Pope committed either offense while using a dangerous weapon.

¶9 On July 2, 1996, the circuit court sentenced Pope to life imprisonment without parole. That same day, Pope and his trial counsel signed an SM-33 form.³ The form indicated that Pope intended to pursue postconviction relief and that counsel would timely file a formal notice of intent to pursue postconviction relief within 20 days-or by July 22, 1996. The form also indicated that Pope knew the notice had to be filed within 20 days. If trial counsel had actually filed the notice of intent to pursue postconviction relief, it would have set in motion the procedures for obtaining a trial transcript and appointment of appellate counsel. See Wis.Stat. § (Rule) 809.30(2)(c)-(h) (1995-96).⁴ But trial counsel did not file that notice of intent to pursue postconviction relief, as required by Wis.Stat. § 809.30(2)(b), in order to commence a direct appeal. As a result, Pope's direct appeal rights expired and no appeal was initiated.

¶10 On September 16, 1997, about 14 months after the filing deadline, Pope finally made his first effort to correct trial counsel's error. He filed a pro se motion to extend the deadline for filing the notice of intent to pursue postconviction relief in the court of appeals. Pope argued that his trial counsel had failed to file the notice of intent, despite Pope's instructions that he file it. Pope attached to his motion a letter he had received from the State Public Defender's office that explained, When [a Notice of Intent] is timely filed, appellate counsel is appointed, transcripts are ordered and the appeal proceeds in the normal fashion. If the Notice of Intent is not filed within 20 days of sentencing, it is necessary to ask the court of appeals to extend the time by filing a motion.

The letter also explained that the State Public Defender had "no idea why the Notice was not timely filed and therefore you are going to have to explain the reason to the court in a motion to extend the time for filing the Notice." The letter also instructed Pope to send any order granting the extension to their Appellate Intake office.

¶11 But, on September 25, 1997, the court of appeals denied Pope's motion. It reasoned: Even assuming the truth of Pope's representations regarding the performance of trial counsel, Pope has failed to provide the court with a sufficient explanation as to why, when counsel failed to initiate postconviction proceedings timely, he did not attempt to commence postconviction proceedings on his own. The court can see nothing in the motion that would warrant a f if teen-month^[5] delay in commencing postconviction proceedings.

¶12 Thus, the court of appeals concluded that Pope had not shown good cause for his delay in bringing the motion. It denied the motion. Importantly, this 1997 court of appeals' decision is not before this court for review. Rather, we review its 2018 decision concluding that Pope is not entitled to a new trial because he failed to assert a facially valid claim of error. Since 1997 Pope has made multiple attempts to reinstate his appeal rights. The procedural history of his case is lengthy. But it is Pope's inaction for 14 months from July 1996 to September 1997 that partially controls the outcome in this case-both then in September 1997, and now in 2019.

¶13 On October 15, 1997, Pope filed a pro se Wis.Stat. § 974.06 motion to reinstate his rights to appeal in the circuit court, arguing that trial counsel was ineffective for not filing a notice of intent to pursue postconviction relief. The circuit court denied the motion, citing the court of appeals' September 1997 decision. On November 5, 1997, Pope filed a notice of appeal. As part of that appeal, Pope filed a...